CALIFORNIA JUDGES BENCHGUIDES. Benchguide 83 RESTITUTION [REVISED 2009]

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1 CALIFORNIA JUDGES BENCHGUIDES Benchguide 83 RESTITUTION [REVISED 2009]

2 ABOUT CJER The California Center for Judicial Education and Research (CJER), as the Education Division of the Administrative Office of the Courts (AOC), is responsible for developing and maintaining a comprehensive and quality educational program for the California judicial branch. Formed in 1973 as a joint enterprise of the Judicial Council and the California Judges Association, CJER supports the Chief Justice, the Judicial Council, and the courts by providing an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels. It includes orientation programs for new judicial officers, court clerks, and administrative officers; continuing education programs for judicial officers, court administrators, and managers; an annual statewide conference for judicial officers and court administrators; video and audiotapes; and judicial benchbooks, benchguides, and practice aids. CJER GOVERNING COMMITTEE Hon. Ronald B. Robie, Chair Court of Appeal, Sacramento Hon. Robert L. Dondero, Vice-Chair Superior Court of California, County of San Francisco Hon. Gail A. Andler Superior Court of California, County of Orange Hon. Ronald L. Bauer Superior Court of California, County of Orange Hon. Alice C. Hill Superior Court of California, County of Los Angeles Ms. Tressa S. Kentner Executive Officer Superior Court of California, County of San Bernardino Hon. Barbara A. Kronlund Superior Court of California, County of San Joaquin Mr. Michael A. Tozzi Executive Officer Superior Court of California, County of Stanislaus Hon. Theodore M. Weathers Superior Court of California, County of San Diego Hon. Elizabeth Allen White Superior Court of California, County of Los Angeles Hon. Arthur A. Wick Superior Court of California, County of Sonoma Advisory Members Hon. Geoffrey T. Glass Superior Court of California, County of Orange California Judges Association Mr. William C. Vickrey Administrative Director Administrative Office of the Courts CJER PROJECT STAFF Barry Harding Senior Attorney, Publications Mary Trew Senior Web Editor JUDICIAL PLANNING COMMITTEE FOR CALIFORNIA JUDGES BENCHGUIDES Hon. Carol Yaggy, Chair Superior Court of California, County of San Francisco Hon. Kathleen M. Banke Superior Court of California, County of Alameda Hon. Joyce M. Cram Superior Court of California, County of Contra Costa Hon. Ross Klein Superior Court of California, County of Los Angeles Hon. Nancy Case Shaffer Superior Court of California, County of Sonoma Hon. Elaine Streger Superior Court of California, County of Orange Hon. Elizabeth Allen White Superior Court of California, County of Los Angeles CJER Governing Committee Liaison BENCHGUIDE CONSULTANTS Ms. Deborah Bain Office of the Attorney General Office of Victims Services Mr. Terry Boehme California Department of Corrections and Rehabilitation Office of Victim and Survivor Rights and Services Ms. Kathleen Benton University of the Pacific McGeorge School of Law Mr. Steven Dippert Santa Clara County District Attorney s Office Ms. Joanne E. Evoy San Diego County District Attorney s Office Mr. Kyle Hedum California Victim Compensation and Government Claims Board Hon. Edward F. Lee Superior Court of California, County of Santa Clara Hon. Vernon K. Nakahara Superior Court of California, County of Alameda Mr. Antonio R. Sarabia II, Attorney Editorial comments and inquiries: Barry Harding, Sr. Attorney fax by Judicial Council of California/Administrative Office of the Courts Published April 2009; covers case law through 44 C4th, 169 CA4th, and all legislation to 1/1/2009.

3 CALIFORNIA JUDGES BENCHGUIDES Benchguide 83 RESTITUTION I. [ 83.1] SCOPE OF BENCHGUIDE II. PROCEDURAL CHECKLISTS A. [ 83.2] Restitution Fines B. [ 83.3] Victim Restitution III. APPLICABLE LAW A. Restitution Fine 1. [ 83.4] Purpose of Fine 2. Major Statutory Requirements a. [ 83.5] Restitution Fine (Pen C ) b. [ 83.6] Probation Revocation Restitution Fine (Pen C ) c. [ 83.7] Parole Revocation Restitution Fine (Pen C ) d. [ 83.8] Discretion To Impose Additional Restitution Fine (Pen C 294) e. [ 83.9] Juvenile Offenders (Welf & I C 730.6) f. [ 83.10] Chart: Comparison of Restitution Fine Provisions for Adult and Juvenile Offenders (Pen C , , ; Welf & I C 730.6) 3. Procedure at Time of Guilty Plea a. [ 83.11] Advisement When Taking Plea b. [ 83.12] Silent Plea Bargain 4. Determination of Fine a. [ 83.13] No Separate Hearing b. [ 83.14] Factors c. [ 83.15] Ability To Pay d. [ 83.16] Multiple Counts e. [ 83.17] No Joint and Several Liability for Restitution Fines 83 1

4 California Judges Benchguide 83 2 f. [ 83.18] Findings g. [ 83.19] Retrial or Remand for Resentencing 5. [ 83.20] Waiver of Fine 6. [ 83.21] No Crediting Amount of Restitution Against Restitution Fine 7. [ 83.22] Penalty Assessments; Administrative Fees 8. [ 83.23] Collection of Fine by CDCR and DJJ 9. [ 83.24] Applying Seized Funds to Restitution Fine 10. [ 83.25] Fine Enforceable as Civil Judgment 11. [ 83.26] Restitution Fine in Bribery Cases B. Restitution Fee in Diversion Matters 1. [ 83.27] Mandatory Fee; Amount 2. [ 83.28] Exceptions 3. [ 83.29] Fee Enforceable as Civil Judgment C. [ 83.30] Victim Restitution 1. Principles Applicable to Restitution Generally a. Procedure at Time of Guilty Plea (1) [ 83.31] Advisement When Taking Plea (2) [ 83.32] Silent Plea Bargain b. [ 83.33] Right to Notice and Hearing c. [ 83.34] Restitution Not Affected by Bankruptcy d. [ 83.35] Order Enforceable as Civil Judgment e. [ 83.36] Penalty Assessments; Administrative Fees f. [ 83.37] Persons Found Not Guilty by Reason of Insanity g. [ 83.38] Effect of Acquittal 2. [ 83.39] Restitution Under Pen C and Welf & I C a. [ 83.40] Presentence Investigation Report b. Hearing (1) [ 83.41] Right to Hearing (2) [ 83.42] Notice (3) [ 83.43] Attendance of Prosecutor (4) [ 83.44] Nature of Restitution Hearing (5) [ 83.45] Burden of Proof c. [ 83.46] Ability To Pay d. Persons Entitled to Restitution (1) Victims (a) [ 83.47] Constitutional Definition of Victim (b) [ 83.48] Statutory Definition Under Pen C (2) [ 83.49] Governmental Agencies (3) [ 83.50] Insurance Companies

5 83 3 Restitution e. Losses Subject to Restitution; Amount (1) [ 83.51] Full Restitution for Economic Losses (2) [ 83.52] Components of Economic Loss (a) [ 83.53] Property Damages or Loss (b) [ 83.54] Medical and Counseling Expenses (c) [ 83.55] Lost Wages and Profits; Out-of-Pocket Expenses (d) [ 83.56] Lost Work Product (e) [ 83.57] Future Economic Losses of Spouse of Deceased Victim (f) [ 83.58] Child Support to Victims Children (g) [ 83.59] Interest (h) [ 83.60] Attorneys Fees (i) [ 83.61] Other Expenses (3) [ 83.62] Matters That Do Not Affect Amount of Restitution (4) [ 83.63] Payment by Defendant s Insurer (5) [ 83.64] Medi-Cal Payments (6) [ 83.65] No Waiver of Full Restitution (7) [ 83.66] Audio-Video Hearing To Impose or Amend Restitution Order (8) [ 83.67] Restitution and Civil Actions f. Order (1) [ 83.68] Specificity and Form (2) [ 83.69] Amount Initially Uncertain (3) [ 83.70] Delegating Restitution Determination (4) [ 83.71] Relation of Restitution Order to Probation (5) [ 83.72] Relation of Restitution Order to Restitution Fund (6) [ 83.73] Order Imposing Joint and Several Liability (7) [ 83.74] Correction, Modification, and Amendment of Restitution Orders g. Enforcement (1) [ 83.75] Satisfaction of Victim Restitution Before Other Court-Ordered Debt (2) [ 83.76] Income Deduction Orders (3) [ 83.77] Order To Apply Specified Portion of Income to Restitution (4) [ 83.78] Collection of Restitution by CDCR and DJJ (5) [ 83.79] Restitution Centers (6) [ 83.80] Financial Disclosure

6 83.1 California Judges Benchguide 83 4 (7) [ 83.81] Applying Seized Assets to Restitution i. [ 83.82] Juvenile Offenders j. [ 83.83] Remand for Resentencing 3. [ 83.84] Restitution as Condition of Probation a. [ 83.85] Accidents Related to Hit-and-Run or DUI Offenses b. [ 83.86] Receiving Stolen Property 4. Restitution Based on Dismissed and Uncharged Counts: Harvey Waivers a. [ 83.87] General Principles b. [ 83.88] Burden of Proof c. [ 83.89] Relation to Probation 5. [ 83.90] Restitution in Bad Check Diversion Cases IV. SCRIPT AND FORMS A. [ 83.91] Sample Script: Admonition Concerning Restitution Fine B. [ 83.92] Sample Written Form: Admonition Concerning Restitution Fine and Restitution C. [ 83.93] Judicial Council Form: Order for Restitution and Abstract of Judgment D. [ 83.94] Judicial Council Form: Defendant s Statement of Assets E. [ 83.95] Judicial Council Form: Information Regarding Income Deduction Order F. [ 83.96] Judicial Council Form: Order for Income Deduction G. [ 83.97] Sample Written Form: Order to Probation Department in Regard to Collection of Restitution V. [ 83.98] INFORMATION ABOUT THE CALIFORNIA VICTIM COMPENSATION PROGRAM VI. [ 83.99] INFORMATION ABOUT THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION RESTITUTION COLLECTION PROGRAM TABLE OF STATUTES TABLE OF CASES

7 83 5 Restitution 83.2 I. [ 83.1] SCOPE OF BENCHGUIDE This benchguide provides an overview of the law and procedure relating to restitution fines, fees, and orders in adult, juvenile, and diversion matters. Sections contain procedural checklists. Sections summarize the applicable law. Sections contain forms. Sections provide information about California s program to compensate victims of crime for unreimbursed losses and the California Department of Corrections and Rehabilitation (CDCR) restitution collection program. II. PROCEDURAL CHECKLISTS A. [ 83.2] Restitution Fines (1) Before accepting a plea of guilty or no contest: (a) Advise defendant that the sentence will include a restitution fine of $200 to $10,000 for a felony conviction, and $100 to $1000 for a misdemeanor conviction, in addition to any other fine the court may impose. For discussion, see JUDICIAL TIPS: The admonition may be, and often is, part of a written form. Defendant should be advised of the range of the fine and not merely the possible maximum. The admonition should also cover the probation revocation and parole revocation restitution fines. For discussion, see 83.11; for script and form, see (b) Determine whether the disposition is part of a plea bargain. If so, ascertain on the record whether the bargain limits the court s discretion with respect to the restitution fine. JUDICIAL TIP: Proposed dispositions that purport to waive the fine or set it below the statutory minimum should be rejected. Pen C (b); see (2) Before sentencing: (a) Preliminarily determine the amount of the restitution fine by considering Any limitation imposed by a negotiated plea. Illustrations: fine to be in amount of statutory minimum; wobbler to be sentenced as misdemeanor. JUDICIAL TIP: In the aftermath of a plea bargain that failed to address the restitution fine, which was not mentioned in the court s advisements of the consequences of the plea, the court must either impose the minimum fine or give defendant an

8 83.2 California Judges Benchguide 83 6 opportunity to withdraw the plea. But if the court, in accepting the plea, advises the defendant that a restitution fine at or above the minimum will be imposed, the court is not precluded from imposing a fine above the statutory minimum. For discussion, see The statutory range: Misdemeanor Felony Minimum $100 $200 For juvenile offenders, see Maximum $1,000 $10,000 Seriousness and circumstances of the offense. Pen C (b)(1), (d). Inability to pay. Pen C (d). JUDICIAL TIPS: (1) Defendant has the burden of showing inability to pay. Pen C (d). (2) Inability to pay only affects the amount of the fine above the statutory minimum. Pen C (c). (3) The California Department of Corrections and Rehabilitation (CDCR) collects restitution fines from the wages and trust account deposits of prisoners. See 83.5, 83.15, Defendant s economic gains, if any, from the crime; losses suffered by others; the number of victims, and any other relevant factors. Pen C (d); for discussion, see JUDICIAL TIP: Judges often consider the amount of restitution to victims and other fines defendant will be ordered to pay. Again, these considerations only affect the amount of the restitution fine in excess of the statutory minimum. The formula set out in Pen C (b)(2) permits, but does not require, the court to set a restitution fine in a felony case as follows: $200 x number of years to be served x number of felony counts of which defendant was convicted. JUDICIAL TIP: Some judges simplify the formula to $200 x number of counts. In the view of some judges, a life sentence calls for the maximum fine. (b) Determine whether an additional probation revocation restitution fine must be imposed and suspended under Pen C Such a fine is mandatory whenever a defendant receives a conditional sentence or a sentence that includes a period of probation. For discussion, see 83.6.

9 83 7 Restitution 83.2 (c) In a felony case determine whether an additional parole revocation restitution fine must be imposed and suspended under Pen C Such a fine is mandatory whenever defendant will be sentenced to state prison and will be eligible for parole. For discussion, see (d) Consider whether there are compelling and extraordinary reasons not to impose a restitution fine. Pen C (c); for discussion, see If yes, make notes for statement of reasons and proceed to (e); if no, proceed to (f). JUDICIAL TIPS: Inability to pay is not an adequate reason. Pen C (c). Nor, in the view of most judges, is a prison sentence. See 83.5, (e) Determine either (i) how much community service to require of defendant instead of the restitution fine or (ii) whether there are compelling and extraordinary reasons to waive the requirement. Pen C (n). In the event of (ii), make notes for a second statement of reasons at sentencing. (f) Determine whether the offense is one for which an additional restitution fine may be imposed under Pen C 294 for specified acts of misconduct against children and for child pornography. (Note: The CDCR does not have the authority to collect restitution fines under Pen C 294.) For discussion, see If yes, proceed to (g); if no, proceed to 3. (g) Consider whether to impose an additional restitution fine, and if so, in what amount. Pen C 294. See (3) At sentencing: (a) Consider matters raised by counsel and make final decision concerning the restitution fine. JUDICIAL TIPS: (1) Restitution fines are normally imposed at the sentencing hearing; defendant is not entitled to a separate hearing. See (2) A judge who is inclined to impose an additional restitution fine under Pen C 294 should so inform defendant at the outset of the sentencing hearing and give defendant an opportunity to be heard. To impose a restitution fine proceed to (b); to waive the fine proceed to (f). (b) Impose a restitution fine (Pen C ).

10 83.3 California Judges Benchguide 83 8 JUDICIAL TIPS: No portion of this fine may be stayed, suspended, or offset by the amount of victim restitution defendant is ordered to pay. See As long as the fine is imposed, findings are unnecessary (Pen C (d)) and usually not made. See The court should not enter a separate money judgment. Although restitution fines are enforceable in the manner of money judgments, the court may not actually enter a money judgment against a defendant for these amounts. See (c) If defendant is granted probation: Make payment of the fine a condition of probation. Pen C (m). Impose an additional fine in the same amount as the restitution fine and order it suspended unless probation is revoked. Pen C The court cannot waive or reduce this fine absent compelling and extraordinary reasons, which must be stated on the record. See (d) If defendant is sentenced to prison, impose an additional fine in the same amount as the restitution fine and order it suspended unless parole is revoked. Pen C JUDICIAL TIP: It is unnecessary to order this fine when defendant is ineligible for parole. See (e) Impose any additional discretionary restitution fine. Pen C 294. See (f) When no restitution fine is imposed: (i) State compelling and extraordinary reasons for this action on the record and (ii) Order defendant, as a condition of probation, to perform community service as specified by the court instead of the fine, or state on the record compelling and extraordinary reasons for not ordering community service. Pen C (n). See JUDICIAL TIP: This statement should be in addition to the statement of reasons for not imposing a restitution fine. Pen C (n). B. [ 83.3] Victim Restitution (1) Before accepting a plea of guilty or no contest:

11 83 9 Restitution 83.3 (a) Advise defendant that the sentence may include an order to pay restitution to the victim in an amount to be determined by the court. For discussion, see 83.31; for form, see JUDICIAL TIPS: (1) When it is clear that the court will order restitution, many judges say so at this point. (2) The admonition can be incorporated into a written form. (b) Advise defendant that he or she is entitled to a hearing in court to dispute the amount of restitution but not the actual order to make restitution. See JUDICIAL TIP: Many judges prefer to give this advice at the time of sentencing. (c) When there is a Harvey waiver that will give the court authority to consider dismissed counts for restitution purposes, make sure that the waiver is stated clearly on the record, that its scope is clear, and that defendant understands it. For discussion, see and (2) Before sentencing consider the probation report, when available, (a) Whether restitution should be ordered Because one or more victims suffered or will suffer an economic loss as a result of the crime(s) of which defendant was convicted (Pen C (a)(1); for discussion, see ; or For other reasons (e.g., Harvey waiver; hit-run victim; see ). JUDICIAL TIP: Judges may order victim restitution, if appropriate, for infractions. Although restitution fines are expressly limited to felonies and misdemeanors, there is no such express limitation with respect to victim restitution. See Pen C 19.7 (statutes relating to misdemeanors generally applicable to infractions), (a)(1) (legislative intent that crime victims who suffer economic loss receive restitution), (f) (restitution required in every case in which victim suffered economic loss as result of defendant s crime), and 1203b (courts may grant probation in infraction cases). (b) Whether the report includes detailed loss figures for each victim and whether they appear to be reasonable. (3) At sentencing (a) Announce either:

12 83.3 California Judges Benchguide (i) The court s preliminary views on restitution and inquire whether the victim or the defendant wishes to be heard. If yes, proceed to (c); if no, proceed to (d) to order restitution. Or (ii) That the probation report does not contain (sufficient) restitution information and proceed to (b). (b) When the probation report lacks restitution data: (i) Ascertain whether the victim is present. If yes, receive the victim s loss information; permit defendant to challenge it; upon request continue to give defendant time to rebut it. If no, proceed to (ii). Or (ii) When the victim is not present and the report recommends a continuance, grant a reasonable continuance as to restitution issues. JUDICIAL TIPS: Judges usually sentence the defendant even though restitution will be determined later. In such cases, the judge should include in the sentence an order for the defendant to pay restitution in an amount to be determined by the court. The court retains jurisdiction for the purpose of imposing restitution until the losses are determined. Judges often seek a waiver of defendant s presence at the subsequent restitution hearing. This is particularly important when the defendant is sentenced to prison. See Or (iii) When the victim is not present, was notified, has not made a claim, and the report does not request a continuance, do not order restitution, except for any benefits that the victim received from the Restitution Fund. Some judges reserve jurisdiction to order restitution unless the prosecutor states that none is due. See JUDICIAL TIP: In many cases, the victim is not notified, and the prosecutor may not have any information regarding losses. In these situations, the court should order restitution for benefits that the victim received from the Restitution Fund and reserve jurisdiction to order any additional restitution. (c) Conduct a hearing when the victim or defendant requests one. JUDICIAL TIP: The hearing does not have the formality of a trial. Hearsay is admissible. For discussion, see

13 83 11 Restitution 83.4 (d) Order defendant to pay restitution (for discussion, see ): Use a separate order for each victim. For form, see Identify each loss separately by name of victim and amount; do not merely order a lump sum payment. Specify whether interest (at 10 percent) will accrue from the date of the order or of the loss. Pen C (f)(3)(G). Specify whether codefendants are jointly and severally responsible for restitution. Do not delegate determination of restitution amount unless the defendant consents to a determination by the probation officer; determination of the number and dollar amounts of installment payments is often delegated to the probation department or other county agency. For discussion, see When the sentence includes probation, make payment of the restitution order a condition of probation. Pen C (m). Order defendant to pay restitution to the California Victim Compensation and Government Claims Board to reimburse payments to the victim from the Restitution Fund. Pen C (f)(2). JUDICIAL TIP: The court should not enter a separate money judgment. Although restitution orders are enforceable in the manner of money judgments, the court may not actually enter a money judgment against a defendant based on an order to pay restitution. See (e) Make and stay a separate income deduction order upon determining that defendant has the ability to pay restitution. Pen C ; for discussion, see For sample income deduction order and related forms, see JUDICIAL TIP: Penal Code does not apply to juvenile court restitution or to any restitution order not made under Pen C For discussion of orders to apply a specified portion of earnings to restitution, see III. APPLICABLE LAW A. Restitution Fine 1. [ 83.4] Purpose of Fine Restitution fines are a major source of financing the state Restitution Fund (see Pen C (e), , ); penalty assessments on

14 83.5 California Judges Benchguide other fines provide additional financing. See Pen C Eligible victims of criminal acts may obtain restitution from the Restitution Fund, which is administered by the California Victim Compensation and Government Claims Board. For detailed information about the Board s Victim Compensation Program, see Major Statutory Requirements a. [ 83.5] Restitution Fine (Pen C ) The principal statutes that govern the imposition of restitution fines on adult offenders are Pen C , , and For discussion of Pen C and , see ; for juvenile offenders, see Key features of Pen C include: Mandatory nature of fine. Imposition of the fine is mandatory except for compelling and extraordinary reasons stated on the record. See Statutory minimums and maximums: Felonies: $200 $10,000 Misdemeanors: $100 $1,000 Limited effect of inability to pay. Defendant s lack of ability to pay does not justify waiver of the fine. It may be considered only in setting the amount above the statutory minimum. For discussion, see 83.15; for discussion of other factors the court should consider in setting the fine, see Hearing. Defendant is not entitled to a separate hearing for determining the amount of the fine. See Community service. When the court does not impose a restitution fine, defendant must be ordered to perform community service except for compelling and extraordinary reasons stated on the record. See Probation. Grants of probation must include payment of the restitution fine as a condition. b. [ 83.6] Probation Revocation Restitution Fine (Pen C ) When a defendant receives a conditional sentence or a sentence that includes a period of probation, the court must impose an additional restitution fine. Pen C In felony cases, the fine applies to both defendants who are placed on probation after the court has suspended imposition of sentence and to defendants who are placed on probation after the court has suspended execution of sentence. People v Taylor

15 83 13 Restitution 83.8 (2007) 157 CA4th 433, , 68 CR3d 682. The probation revocation restitution fine has the following features (Pen C ): It must be imposed in addition to, not instead of, the restitution fine required by Pen C ; The amount of the fine is the same as the amount imposed under Pen C ; The fine does not become effective unless and until the probation or conditional sentence is revoked; and The court may not waive or reduce the fine, absent compelling and extraordinary reasons stated on the record. c. [ 83.7] Parole Revocation Restitution Fine (Pen C ) When a defendant is sentenced for one or more felonies and will be statutorily eligible for parole, the court must impose an additional restitution fine. Pen C The parole revocation restitution fine has the following features (Pen C ): It must be imposed in addition to, not instead of, the restitution fine required by Pen C The amount of the fine is the same as the amount imposed under Pen C The fine shall be suspended unless and until parole is revoked. The parole revocation restitution fine cannot be imposed unless the defendant is eligible for parole. Pen C ; see People v Oganesyan (1999) 70 CA4th 1178, 1183, 83 CR2d 157 (defendant sentenced to life in prison without possibility of parole not subject to fine); People v Brasure (2008) 42 C4th 1037, 1074, 71 CR3d 675 (defendant who is sentenced to death for capital murder and sentenced to determinate prison term under Pen C 1170 for several other offenses is subject to fine). d. [ 83.8] Discretion To Impose Additional Restitution Fine (Pen C 294) Penal Code 294 permits the court to impose an additional restitution fine on defendants convicted of specified offenses. Although labeled a restitution fine, it goes to the Restitution Fund only for the purpose of being transferred to the county children s trust fund for child abuse prevention. Offenses. The court may impose the added fine upon conviction of any of the following offenses (Pen C 294(a)): Pen C 273a (child abuse);

16 83.9 California Judges Benchguide Pen C 273d (inflicting corporal injury on child); Pen C (multiple sexual conduct with child under 14); Pen C (obscene depiction of minor); Pen C (child molestation); as well as for any of the violations listed below when the victim was under the age of 14 at the time of the offense (Pen C 294(b)): Pen C 261 (rape); Pen C (rape in concert with others); Pen C 285 (incest); Pen C 286 (sodomy); Pen C 288a (oral copulation); Pen C 289 (sexual penetration by foreign or unknown object). Amount. The maximum is $5000 for a felony and $1000 for a misdemeanor, in addition to the mandatory restitution fine. Ability to pay. Defendant s ability to pay is a factor in deciding whether to impose the fine and in what amount. Hardship on victim. When the defendant is a member of the victim s immediate family, the court is to consider whether the added fine would result in hardship for the victim. Pen C 294(c). JUDICIAL TIP: When the court is considering a fine under Pen C 294, it should so advise the defendant and afford an opportunity for a hearing on ability to pay, victim hardship, and other relevant matters. The California Department of Corrections and Rehabilitation (CDCR) does not have the authority to collect restitution fines under Pen C 294. e. [ 83.9] Juvenile Offenders (Welf & I C 730.6) Juvenile offenders are also subject to mandatory restitution fines. Welf & I C The principal features of the provisions governing juveniles are: The felony fine range is $100 to $1000; the misdemeanor fine cannot exceed $100. There is no prescribed minimum misdemeanor fine. Welf & I C 730.6(b)(1). The factors that the court should consider in setting the fine are essentially the same as for adult offenders. See Welf & I C

17 83 15 Restitution (d)(1). See also chart in Express findings are unnecessary and usually not made. See Welf & I C 730.6(e). Imposition of the fine is mandatory, except for compelling and extraordinary reasons in felony cases. The reasons must be stated on the record. Welf & I C 730.6(g). The restitution fine cannot be waived for misdemeanors, probably because there is no statutory minimum fine with respect to them. When the fine is waived, the minor must be required to perform community service except for compelling and extraordinary reasons stated on the record. Welf & I C 730.6(n), (o). Inability to pay does not justify failure to impose a restitution fine. Welf & I C 730.6(c). It is a factor in setting the amount of the fine. The offender has the burden of showing inability, but is not entitled to a separate hearing. Welf & I C 730.6(b), (d)(2). In determining a juvenile offender s ability to pay, the court may consider the juvenile s future earning capacity. Welf & I C 730.6(d)(2). Payment of the fine must be a condition of probation. Welf & I C 730.6(l). Parents and guardians may be jointly and severally liable. Welf & I C f. [ 83.10] Chart: Comparison of Restitution Fine Provisions for Adult and Juvenile Offenders (Pen C , , ; Welf & I C 730.6) Amount of fine Misdemeanor Felony Adult $100 $1000 $200 $10,000 Juvenile Not more than $100 $100 $1000 Factors to consider when setting fine above statutory minimum All relevant factors including but not limited to: Inability to pay Seriousness of offense Circumstances of commission Economic gain by offender Losses to others from offense

18 83.10 California Judges Benchguide Adult Juvenile Number of victims Optional formula for multiple felonies Burden of showing inability to pay when court sets fine above statutory minimum Waiver Community service Effect of restitution to victim Relation to probation Offender Only for compelling and extraordinary reasons stated on record; inability to pay not adequate reason No waiver when offense is a misdemeanor Mandatory when fine waived except for compelling and extraordinary reasons stated on record Cannot be offset against fine Payment must be condition of probation Probation revocation fine Parole revocation fine Must be imposed separately in same amount as restitution fine and becomes effective on revocation of probation or of a conditional sentence Must be imposed separately in same amount as restitution fine and suspended unless and until parole is revoked Inapplicable Inapplicable

19 83 17 Restitution Procedure at Time of Guilty Plea a. [ 83.11] Advisement When Taking Plea A restitution fine is a direct consequence of a guilty or no contest plea. Accordingly, the court must advise defendant of the minimum and maximum fines. People v Walker (1991) 54 C3d 1013, 1022, 1 CR2d 902. For script and form, see Error that results from not giving this advice is waived unless called to the attention of the trial court at or before sentencing. People v Walker, supra. Upon timely objection, the court must determine whether the error was prejudicial, and if so, either impose only the minimum fine or permit defendant to withdraw the plea. People v Walker, supra, 54 C3d at The major factor in determining prejudice is the size of the fine that the court imposed. People v Walker, supra. The Walker case should not be understood as finding that the restitution fine has been and will be subject of plea negotiations in every case. The parties are free to make any lawful bargain they choose, including leaving the imposition of fines to the discretion of the sentencing court. People v Dickerson (2004) 122 CA4th 1374, , 22 CR2d 854. b. [ 83.12] Silent Plea Bargain When a plea bargain fails to address the restitution fine, the court must either reduce the fine to the minimum or allow defendant to withdraw the plea. People v Walker (1991) 54 C3d 1013, , 1 CR2d 902. Defendant does not waive this issue by failing to raise it at the time of sentencing; it may be raised on appeal. If the issue is raised after sentencing, the proper remedy generally is to reduce the fine to the statutory minimum and to leave the plea bargain intact. People v Walker, supra. When a defendant enters a plea bargain that makes no mention of the imposition of a restitution fine, but the court, in accepting the plea, accurately advises the defendant that it will impose a restitution fine, and that the amount may be anywhere in the statutory range, the court is not thereafter precluded from imposing a restitution fine above the statutory minimum. People v Crandell (2007) 40 C4th 1301, , 57 CR3d 349. The court in Crandell stated that the lack of an agreement on the restitution fine demonstrates that the parties intend to leave the amount of the fine to the discretion of the court. 40 C4th Crandell distinguished People v Walker, supra, in which the restitution fine was neither an element of the plea bargain nor mentioned in the court s advisements of the consequences of the plea. 40 C4th at JUDICIAL TIPS:

20 83.13 California Judges Benchguide Counsel should be asked to state any agreement with respect to the fine when putting the proposed terms of negotiated plea on the record. When the negotiations leave the fine open, the court should explain to the defendant the minimum and maximum fines or have counsel do so and obtain defendant s oral assent. The court should give the Pen C admonition (relating to the defendant s right to withdraw the plea) whenever required by that statute. See People v Walker, supra, 54 C3d at 1030; People v Crandell, supra, 40 C4th at Determination of Fine a. [ 83.13] No Separate Hearing The defendant is not entitled to a hearing apart from the sentencing hearing with respect to the restitution fine. Pen C (d). JUDICIAL TIP: Both sides should be given an opportunity to address the matter at the sentencing hearing, because, inter alia, defendant has the burden of demonstrating inability to pay. Pen C (d). b. [ 83.14] Factors Statutory factors. In determining the amount of the fine, the court should consider any relevant factor (Pen C (d)), including: Inability to pay (for discussion, see 83.15); Seriousness of the offense; Circumstances of the offense; Defendant s economic gain, if any, from the crime; Pecuniary and intangible losses of victims or dependents of victims; Number of victims. Criminal record. Defendant s criminal record is a relevant factor. People v Griffin (1987) 193 CA3d 739, , 238 CR 371; Cal Rules of Ct , Optional formula. In multicount felony cases the court may set the fine by using the formula stated in Pen C (b)(2). See Juveniles. Factors to consider in juvenile cases are virtually the same as in cases involving adult offenders. See chart in

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